dissenting in part.
Today the court changes the law in two new ways. The first way is directly contrary to statute. The second is simply another restriction on equivalency, far exceeding the holdings of the Supreme Court in Festo and Warner-Jenkinson.
Contrary to 35 U.S.C. § 112 ¶4, the court now holds that the act of restating a dependent claim in independent form is a “narrowing amendment” in terms of Festo, although the claim had never been rejected or amended or narrowed. From this premise the court holds that all elements of the restated claim are subject to the presumption of surrender of all equivalents, whenever the antecedent independent claim is cancelled. Thus a limitation that has never been narrowed is subject to the presumption of surrender when a broader claim is cancelled, even when the broader claim did not mention that limitation. That is not in accordance with the Court’s holding in Festo.
This new rule will simply drive patent applicants away from dependent claims and away from the accepted protocol of presenting successively narrowed dependent claims for examination. This new rule will simply raise the cost and increase the difficulty of patent examination. By adding presumptive estoppels to elements and limitations that were never a basis of rejection and never narrowed during examination, the court further erodes the ability of inventors to protect their inventions. Although the majority attributes its ruling to the Supreme Court, this new leap for inventors is not the Court’s work but that of my colleagues. I respectfully dissent.
Restating a Dependent Claim in Independent Form is Not a Change in Scope
The court holds that the placing of a dependent claim in independent form, when required only because the antecedent independent claim was cancelled, is a narrowing amendment as to all elements and limitations of the restated claim. That ruling is contrary to statute. When a dependent claim is placed in independent form, it simply states explicitly what was previously incorporated by reference:
35 U.S.C. § 112 ¶4. A claim in dependent form shall be construed to incorporate by reference all the limitations of the claim to which it refers.
*1147Restating a dependent claim in independent form does not change, its content or scope; the claim is of identical content and scope before and after it is rewritten. See, e.g., Bloom Eng’g Co. v. N. Am. Mfg. Co., 129 F.3d 1247, 1250 (Fed.Cir.1997) (“Bloom did no more than restate original claims 7 and 18 in independent form.... Thus this change, standing alone, did not change the scope of original claims 7 and 18.”); Wahpeton Canvas Co. v. Frontier, Inc., 870 F.2d 1546, 1553 (Fed.Cir.1989) (“The jury was properly instructed that a dependent claim includes all the limitations of the claim from which it depends ... ”); Hartness Int’l Inc. v. Simplimatic Eng’g Co., 819 F.2d 1100, 1108 (Fed.Cir.1987) (“[Djependent claim 3 included all the limitations of claim 1, with the further limitation of tapered partitions”).
35 U.S.C. § 112 ¶ 4 assured that claim scope is unrelated to whether the claim is in independent or dependent form. The Court in Festo did not change that law. My colleagues not only impose the presumptive surrender of Fe'sto, but also presume estoppel against the entire universe of technology. That is, instead of presuming surrender of the territory between the original scope of the claimed element and the scope of that element after a narrowing amendment — the rule developed in Festo — the court now presumes unlimited surrender when an element was not originally claimed at- all and therefore presents no outer limit of surrendered territory.
The Court in Festo established a presumption of surrender of the territory between the original scope of the claim and its amended scope. My colleagues now hold that all equivalents, without limit, are presumptively surrendered when the element was not initially claimed, whenever a dependent claim is required to be restated because the antecedent claim was can-celled.
The Honeywell dependent claims added the inlet guide vanes element and what the parties call the- deltaP limitation.1 Although these additions were never narrowed by amendment (or argument), the court holds that they are subject to a presumption of surrender of all equivalents, simply because the antecedent claim was rejected and dropped. However, the antecedent claim did not mention any sort of inlet guide vane or any version of del-taP; these aspects were not previously claimed, and were not amended or narrowed at any time during prosecution.
*1148Thus the court achieves the far-reaching new rule that an element or limitation contained in a dependent claim, although never narrowed and never subject to any-ground of rejection, has presumptively surrendered all equivalents. These limitations are now barred from access to routine function/way/result equivalency (the formula of Graver Tank), and can reach equivalents only on the Festo grounds that apply to elements that have had narrowing amendments, viz., unforeseeability and tangentialness.
In so holding, the court ignores its own en banc pronouncement on the applicability of prosecution history estoppel. This court held, upon remand of the Festo case from the Supreme Court, that “[t]he first question in a prosecution history estoppel inquiry is whether an amendment filed in the Patent and Trademark Office has narrowed the literal scope of a claim. If the amendment was not narrowing, then prosecution history estoppel does not apply.” Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 344 F.3d 1359, 1366-67 (Fed.Cir.2003). Because restating a claim in independent form does not narrow the literal scope of the claim, every claim at issue in this case is of precisely the scope it had when originally filed. There was no narrowing of the scope of any claim at issue, or of any element or limitation of any claim at issue. Therefore, the claim does not pass the “first question” announced by this court, and “prosecution history estoppel does not apply.”
Dependent Claims are an Examination Convenience
The use of dependent claims is encouraged by the patent examining authority as an aid in examination. Its value during examination is reflected in the significantly lower fees charged for examination of dependent claims.
In earlier practice, the Patent Office required that “each claim should be drawn complete in itself.” In re Sexton, 1873 C.D. 66 (Comm’r Pat. 1873). By the early twentieth century the Office recognized that for clarity, brevity, and convenience the use of dependent clams “would reduce the number of claims and make division between independent inventions clear and easy” because “such a claim would be self-analyzing and self-classifying, and therefore make the examination of the claim easier.” Ex parte Brown, 1917 C.D. 22 (Comm’r Pat.1917). Statutory recognition of dependent claims occurred in 1965, amending § 112 to recognize dependent claims, amending § 282 to state the presumptive validity of dependent claims, and § 41 to reduce the fee for dependent claims. Act of July 24, 1965, Pub.L. 89-83, 79 Stat. 259. The legislative Report stated that the purpose was “to make -clear that dependent claims are to be considered individually on their merits.” S.Rep. No. 89-301 at 4 (1965), reprinted in 1965 U.S.C.C.A.N. 2315, 2319. In 1975 Title 35 was further amended in connection with the Patent Cooperation Treaty “to take account of a more liberal claim drafting practice in permitting multiple dependent claims as provided by the Treaty.” H.R.Rep. No. 94-592, at 4 (1975), reprinted in 1975 U.S.C.C.A.N. 1220, 1224 (referencing Act of Nov. 14, 1975, Pub.L. 94-131 §§ 3, 7,10, 89 Stat. 685, 690-92).
Each claim defines a separate invention, whether or not written in independent form; and its validity stands or falls separately:
35 U.S.C. § 282 Each claim of a patent (whether in independent, dependent, or multiple dependent form) shall be presumed valid independently of the validity of the other claims; dependent or multiple dependent claims shall be presumed valid even though dependent upon an invalid claim.
*1149A dependent claim is independently valid, and is not narrowed by the cancellation of its antecedent claim. See Altoona Publix Theatres, Inc. v. American Tri-Ergon Corp., 294 U.S. 477, 487, 55 S.Ct. 455, 79 L.Ed. 1005 (1935) (“Under the statute it is the claims of the patent which define the invention. And each claim must stand or fall, as itself sufficiently defining invention, independently of the others.”) (citations omitted). “[E]ach claim must be considered as defining a separate invention.” Jones v. Hardy, 727 F.2d 1524, 1528 (Fed.Cir.1984). See Pall Corp. v. Micron Separations, Inc., 66 F.3d 1211, 1220 (Fed.Cir.1995) (“[E]ach claim is a separate statement of the patented invention”).
A Claim is Not Narrowed by Cancelling its Antecedent Claim
By statute it is irrelevant whether a claim is in dependent or independent form; it is not a narrowing amendment to go from dependent form to independent form. The majority opinion searches for and finds a narrowing amendment in the cancellation of the broader antecedent claim. However, for the claims here at issue, there was no narrowing amendment of any of the elements or limitations at issue, in any claim.
The majority opinion changes the basic premise of presentation of claims of varying scope and divergent content, in holding that by dropping a broader claim, the claims subordinate to that claim became subject to presumptive estoppel, whether or not the subject matter at issue was included in the broader claim. That is far removed from the Court’s holding in Festo. Although the majority quotes the Court’s statement that “a narrowing amendment made to satisfy any requirement of the Patent Act may give rise to an estoppel,” 535 U.S. at 736, 122 S.Ct. 1831, restating a dependent claim into an independent claim of identical scope is not a narrowing amendment; and cancelling a broader claim (especially one that does not mention the element at issue for equivalency) is not a narrowing amendment.
In Festo the Court recognized that some §112 amendments are substantive but that other § 112 amendments are formal:
Petitioner contends that amendments made to comply with § 112 concern the form of the application and not the subject matter of the invention. The PTO might require the applicant to clarify an ambiguous term, to improve the translation of a foreign word, or to rewrite a dependent claim as an independent one. In these cases, petitioner argues, the applicant has no intention of surrendering subject matter and should not be estopped from challenging equivalent devices. 'While this may be true in some cases, petitioner’s argument conflates the patentee’s reason for making the amendment with the impact the amendment has on the subject matter.
Estoppel arises when an amendment is made to secure the patent and the amendment narrows the patent’s scope. If a § 112 amendment is truly cosmetic, then it would not narrow the patent’s scope or raise an estoppel. On the other hand, if a § 112 amendment is necessary and narrows the patent’s scope — even if only for the purpose of better description — estoppel may apply.
Festo, 535 U.S. at 736-37, 122 S.Ct. 1831. The majority states that in this passage the Court “rejected the position of the government [that rewriting a dependent claim into independent form does not give rise to a presumption of surrender], stating that rewriting a dependent claim in independent form creates a presumptive surrender if the amendment is ‘made to secure the patent.’ ” Maj. op. at 1143-44. Neither this passage, nor any other, so holds. Indeed, the Court explained that *1150the criterion is whether the § 112 amendment was a narrowing amendment, stating that “it may be true in some cases” that an amendment under § 112 does not trigger prosecution history estoppel. Festo, 535 U.S. at 736,122 S.Ct. 1831.
Rewriting of a claim in accordance with 35 U.S.C. § 112 ¶ 4 can never be a narrowing amendment, because, by statute, rewriting a dependent claim in independent form does not narrow the claim’s scope. The Court did not purport to overturn that well-respected law. Although it is well established that the prosecution of an element in other claims may affect the scope of that element in all claims, as discussed post, the court today rules that the mere presentation of a new element in a dependent claim raises the presumption of surrender of all equivalents of that element whenever the antecedent claim is can-celled. That is simply incorrect.
In the Honeywell claims the newly added element was never the subject of rejection or amendment during prosecution. It is irrelevant whether that element first appeared in a dependent or an independent claim. It is a new and unwarranted enlargement of Festo’s law of presumptive surrender, to hold that this presumption arises automatically as to elements that were never rejected, never amended, and never at issue during prosecution, whenever a broader claim is cancelled.
The question is not whether a claim that contains more limitations — for example, a claim that names more parts of a mechanical device — is narrower than a claim that names fewer parts. Of course a claim with more limitations is narrower than a claim with fewer limitations. The issue is whether a claimed element that has never been amended is always subject to the restricted access to equivalency that flows from presumptive surrender based on a narrowing amendment.
According to my colleagues, no element/limitation added by dependent claim, although never rejected, can achieve Graver Tank function/way/result equivalency, when the antecedent claim is cancelled for reasons of patentability. That is not what the Court in Festo held. The Court stated that there was no per se rule for the group of § 112 amendments that are formalistic instead of substantive, and that the “impact on the subject matter” must always be considered. For example, if the dependent claim were itself rejected for reasons of patentability, it is irrelevant whether the claim is in dependent or independent form. However, when, as here, the dependent claim was never rejected, the act of rewriting the dependent claim does not raise a presumptive estoppel to equivalency, whether or not the antecedent claim is cancelled. The Court’s Festo opinion does not state otherwise.
The Honeywell claims in suit were not rejected on any ground, although the independent claims were rejected on substantive grounds. The district court applied the Federal Circuit’s 2002 opinion (before va-catur by the Supreme Court), and on those rigorous grounds of estoppel the district court ascertained which elements or limitations were asserted to be infringed by an equivalent, determined that they involve the inlet guide vanes and the deltaP parameter, and observed that these aspects were not amended during prosecution and were not a subject of rejection. The district court correctly held that these claims were amenable to Graver Tank equivalency, and instructed the jury accordingly.
Cancelling an independent claim in favor of a dependent claim restated in independent form, is not the same as making a narrowing amendment to a claim. It is not notice of a retrenchment in the scope of the dependent claim. See Schwing GmbH v. Putzmeister Aktiengesellschaft, *1151305 F.3d 1318, 1324 (Fed.Cir.2002) (“Although prosecution history can be a useful tool for interpreting claim terms, it cannot be used to limit the scope of a claim unless the applicant took a position before the PTO that would lead a competitor to believe that the applicant had disavowed coverage of the relevant subject matter.”). Merely cancelling a broad claim is not a signal to competitors that the patentee disavowed all equivalents of the elements and limitations of remaining claims that were never rejected during prosecution.
The “Objection” to the Honeywell Claims During Examination
The claims at issue were never rejected during patent examination, on prior art or any other ground. They were held to recite allowable subject matter in the first action by the examiner, but because they depended from claims that had been rejected, the examiner “objected” to them.
When the form of a claim is improper, the examiner issues an “objection” rather than a “rejection.” MPEP § 706.01 (8th Ed.2001) discusses this distinction:
The refusal to grant claims because the subject matter as claimed is considered unpatentable is called a “rejection.” ... If the form of the claim (as distinguished from its substance) is improper, an “objection” is made. An example of a matter of form as to which objection is made is dependency of a claim on a rejected claim, if the dependent claim is otherwise allowable. See MPEP § 608.01(n).
MPEP § 608.01(m) lists various grounds of objection to the form of claims, and in Ex parte Porter the Board explained that the question of dependent form is formal, not substantive:
[MPEP § 608.01(n)] properly treats a claim considered to be an improper dependent claim an administerial function or formal matter wherein the examiner’s ruling can be challenged by way of petition under 37 C.F.R-. § 1.181 rather than by appeal under 37 C.F.R. § 1.191.
Ex parte Porter, 25 USPQ2d 1144, 1147 (Bd.Pat.App & Interf.1992).
The examiner stated that the Honeywell claims in suit were allowable, and would be allowed if placed in independent form. Honeywell then simply cancelled all of the rejected claims, without amendment or argument concerning the rejection, and placed the “objected to” claims in independent form. These claims were then issued. Their scope was never changed. No change was made in any element or limitation, while in either dependent or independent form. The inlet guide vanes and del-taP were not mentioned in any cancelled independent claim, had not been claimed more broadly in any rejected claim, and were not the subject of amendment or argument. These limitations appeared only in the original dependent claims, and were unchanged when the claims were restated in independent form. There was no narrowing amendment. This is a conspicuous distinction from the precedent relied on by the majority.
The district court correctly analyzed this precedent. _ In Diversitech Corp. v. Century Steps, Inc., 850 F.2d 675, 681 (Fed.Cir.1988) the patentee had presented arguments that expressly surrendered the scope being claimed as an equivalent; this court properly held that these arguments applied to all claims, whether or not the claims had themselves been amended. Similarly in Builders Concrete, Inc. v. Bremerton Concrete Prods. Co., 757 F.2d 255, 260 (Fed.Cir.1985), this court held that although the claim in suit had not been amended, “the precise subject matter that was relinquished in order to obtain allowance” of a different claim, could not be recaptured under the doctrine of equivalency. In these cases the asserted equiv*1152alent had been expressly disclaimed or relinquished during prosecution.
This law is well-established, as reflected in the recent Deering and Ranbaxy cases, on which the majority places heavy reliance. As stated in Deering Precision Instruments, L.L.C. v. Vector Distribution Sys., Inc., 347 F.3d 1314, 1325 (Fed.Cir.2003), “the correct focus is on whether the amendment surrendered subject matter that was originally claimed for reasons related to patentability.” In Deering the original independent claim was directed to a scale that comprised “a sliding weight movably carried by said beam for movement along said scale,” and a dependent claim limited the sliding weight element of the independent claim by further requiring that it contain a “zero position.” This court held that the territory between the zero position of the sliding weight in the dependent claim and the unlimited position of the sliding weight in the cancelled claim was subject to Festo estoppel. That holding is in accord with conventional estoppel and element-by-element analysis.
Similarly in Ranbaxy Pharms. Inc. v. Apotex, Inc., 350 F.3d 1235, 1240 (Fed.Cir.2003), the original independent claim contained the description “highly polar organic solvent,” and dependent claims added solvent categories of sulfoxides, amides, and formic acid. The broad “highly polar organic solvent” was rejected on prior art and the applicant cancelled that claim, retaining the dependent claims’ sulfoxides, amides, and formic acid. The dependent claims were then restated in independent form. The court correctly applied Festo estoppel to Ranbaxy’s assertion of equivalency of other polar solvents. The court correctly applied the rules of estoppel to these narrowed claim limitations; the form of the claims was irrelevant.
Applied to the Honeywell claims, the inlet guide vanes element and deltaP limitation were not narrowed by amendment. The dependent claims added these new features, not present in the original independent claim. In contrast, in Deering and Ranbaxy the dependent claim limited an element of the original independent claim, raising the presumption of surrender of “all territory between the original claim limitation and the amended claim limitation.” Festo, 535 U.S. at 740, 122 S.Ct. 1831. In contrast, in the Honeywell situation the inlet guide vanes and deltaP were not claimed in any scope, and there was no surrendered territory of inlet guide vanes and deltaP.
The court thus imposes an unbounded estoppel, for there is no measure of the yielded territory. However, the proper focus is the prosecution-induced change to the element at issue. See Warner-Jenkinson Co. v. Hilton Davis Chem. Co., 520 U.S. 17, 29, 117 S.Ct. 1040, 137 L.Ed.2d 146 (1997) (equivalency is determined element by element). It is necessary, to implement Festo and Wamer-Jenkinson, to determine whether the dependent claim added a new element or simply limited an existing element. The decisionmaker can then determine the scope of the intervening territory, imposing the Festo restrictions on equivalency when there is a presumption of surrender, or the equivalency principles of Graver Tank when there is no presumption of surrender.
The Challenge to Patentees
My colleagues state that they are preventing subversion of the court’s attempts to restrain access to equivalency, by preventing “astute practitioners, through clever claim drafting, from elect[ ] to treat most, if not all, amendments by merely adding new claim limitations rather than narrowing preexisting ones.” Maj. op. at 1141-42. Indeed, it has long been the practice to add new limitations in subordinate claims.
The court holds: “we hold that an amendment adding a new claim limitation *1153constitutes a narrowing amendment that may give rise to an estoppel.” That holding is seriously flawed, for it holds that no subordinate claim can avoid presumptive surrender and estoppel whenever a broader claim is cancelled. Yet the writing of broader claims and their cancellation during prosecution is, or was, the common practice. Astute practitioners are indeed needed, for little is left of access to equivalency.
Today’s new rule solves no problem, rights no wrong, addresses no unmet need. Future applicants may attempt to obtain access to the doctrine of equivalents through avoiding dependent claims. Patent applications will cost more, since independent claims carry a heavier fee than dependent ones. There will be more opportunities for mistakes, and insignificant changes in the wording of limitations that would have been incorporated by reference will be fodder for litigation. Examination will probably take longer, because the use of dependent form adds organization to the claims and makes them easier to understand. The losers are those patentees who had no reason to foresee today’s new rule, and future patentees who will have to cope with it.
. The claims at issue, in their original dependent form, were as follows:
17. The accessory power unit of Claim 16 wherein said compressor has adjustable inlet guide vanes, the value of said flow-related parameter is substantially independent of the temperature of the compressed air, said comparator means have an adjustable control set point representing said desired value of said parameter, and said accessory power unit further comprises means for transmitting to said comparator a reset signal for varying said set point as a function of the position of said inlet guide vanes in accordance with a predetermined reset schedule.
35. The control system of Claim 32 wherein the compressor has adjustable inlet guide vanes, and said control system further comprises a guide vane position sensor and a function generator coupled in series between the inlet guide vanes and said input portion of said comparator.
51. The method of Claim 49 wherein the compressor has adjustable inlet guide vanes, and said method further comprises the step of adjusting the relationship between the magnitudes of said integral and proportional control signals and the magnitudes of said parameter variations as a function of the position of the inlet guide vanes.
The claims were held allowable on the first examiner’s action, but were “objected to” as to dependent form. (Claim 35 was also rejected as indefinite under 35 U.S.C. '112; this rejection was overcome by amendment to other elements, not here at issue.)